The National Court decides that the permit can be extended up to five days if home rest is prescribed, even if the patient has been discharged from hospital.

Procedure No. 391/2024 is resolved regarding collective conflict, presented by several unions against a company in the graphic arts sector, paper and cardboard handling, publishing and auxiliary industries(BOE no. 245, of October 13, 2023).

The object of the conflict is the recognition of the right of workers to fully enjoy the five-day leave in cases of accident, serious illness, hospitalization or surgical intervention without hospitalization, when the family member or partner needs home rest. This right covers the spouse, common-law partner, relatives up to the second degree of consanguinity or affinity, as well as cohabitants in the same home who require effective care. In particular,It is debated whether, after hospital discharge, when the five days of leave have not yet been exhausted and the family member or partner must continue to rest at home, paid leave is still applicable..

While the business representation maintains that the permit ends with hospital discharge, except in surgical interventions without hospitalization with home rest, the union party argues that it should be extended if home rest is prescribed.

The collective conflict focuses on the application of article 37.3.b) of the Workers' Statute (ET) and article 8.5.1.b) of the Collective Agreement corresponding, in relation to leave for hospitalization or surgical intervention of family members. The company has granted said permission partially in some cases, which has caused legal controversy.

On January 16, 2025, the company had five requests for leave due to hospitalization of family members registered, granting it unequally.

ON November 29, 2024, a mediation event was held at SIMA without agreement between the parties.

The company alleged a lack of territorial jurisdiction and argued that the conflict only affected the center of Xàtiva, it was an individual conflict that affected several workers and not a collective one. However, the National Court determined that the refusal to grant the five-day permit is based on a general business criterion applicable to all work centers and all workers under a uniform criterion.

According to the doctrine, the purpose of the permit is the patient's need for care and attention.. ”Permission for hospitalization of... must be granted when the rest of the elements that make up such right are met, regardless of whether said family member is still hospitalized or not.”, that is, without the simple hospital discharge report automatically leading to the extinction or termination of the permit.

“ Hospital discharge is not accompanied by medical discharge, not even in cases of minor surgery, but is almost always given with the medical recommendation - expressed or not in documentation - that the health care received be followed by a period of rest, which if it is at home in itself constitutes an independent cause for the paid leave.

Jurisprudence considers that home rest implies the need for care on the part of the worker, which justifies the maintenance of paid leave..

Social reality shows that these permits are exercised mainly by women. EU Directive 2019/1158 and jurisprudence, such as STS 9-12-2019, advocate co-responsibility in the assumption of family duties. According to art. 4 of LO 3/2007, any interpretative doubt must be resolved with a gender perspective, guaranteeing equal treatment and opportunities between women and men.

Regarding the principle of equality In the normative interpretation, the ruling reaffirms that the collective agreement cannot impose more restrictive conditions than those established by the Workers' Statute. The right to enjoy five-day leave for hospitalization or surgical intervention with home rest is guaranteed at the national level, and any more restrictive interpretation within the scope of the collective agreement would be contrary to the principle of the minimum necessary right. This principle ensures that the five-day leave must be guaranteed, even if hospital discharge has taken place and the need for care of the family member still persists.

The sentence also analyze the argument of the company about the possibility of abuse of law by the workers. The Court reinforces the idea that the abuseshould not be assumed in a generalized way, but must be tested. Furthermore, the legal system offers the company mechanisms to check the veracity of permits, such as the requirement of medical justification for home rest.

Regarding the legal interpretation of article 8.5.4 of the collective agreement, the Court clarifies that, if the agreement establishes certain conditions on the enjoyment of the leave, these cannot contradict or reduce the minimum rights established by the Workers' Statute, since this is a basic right and not susceptible to being restricted by sectoral agreements.

The National Court upheld the claim filed, declaring that the workers of the defendant company have the right to enjoy the entire five-day leave for hospitalization or surgical intervention without hospitalization that requires home rest for their family members, in accordance with article 37.3.b) of the Workers' Statute (ET) and article 8.5.1.b) of the applicable Collective Agreement.

The ruling highlights that This right must be maintained even when hospital discharge has occurred, as long as there is a prescription for home rest for the family member.. Therefore,The leave should not automatically expire with hospital discharge, but should be extended to a maximum of five days if home rest is required..

Furthermore, the principle of gender equality is highlighted, since these permits are used mainly by women, and any interpretation must guarantee equal treatment and opportunities between women and men.

Failed: declares the right of the company's workers to enjoy the five-day leave, if after discharge from the hospital those days have not been exhausted and home rest has been prescribed for the family member or cohabitant. An appeal is possible against the resolution before the Social Chamber of the National Court.